Overview
This Lunch and Learn seminar will address common grounds for challenging a Will, including “lack of testamentary capacity,” “lack of knowledge and approval of the contents of the Will,” and “undue influence.”
A duly executed Will is presumed to be valid. Where the circumstances surrounding the making of the Will cause the Court to suspect that the testator lacked the capacity, knowledge, or approval to make the Will, the burden shifts to the propounder of the Will (usually the Estate Trustee) to prove the Will’s validity “in solemn form.”
To have testamentary capacity, a testator must be of sound mind, memory, and understanding. They must be capable of understanding and acting on his or her own initiative and volition.
A testator must also understand their property, persons who would be the beneficiaries of the estate, and that they would be revoking any prior Wills. A testator is determined to lack capacity when, at the time they executed the Will, the Court finds that they did not understand one or more of these elements.
Finally, a testator cannot have made their Will under the coercive pressure of another person. Courts are likely to set aside a Will when evidence shows that the testator’s own views and opinions were overwhelmed to a point that the Will does not reflect the true intentions of the testator.
Topics include:
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue influence
Session Recording
In the Media
This article was published by Law360 Canada, part of Lexis Nexis Canada Inc. on March 9, 2023.